Tobacco Lawyers have a tough job, one that requires both brute strength and a fair degree of subtlety. They have to be aggressive, certainly, and, in a product liability suit, it probably helps to have a mean streak–but they certainly can’t get overaggressive or display cruelty or they will alienate a jury.

In the DOJ trial, the tobacco lawyers didn’t have to worry about this aspect much–no one’s tale of woe was moving a jury to tears, and besides, the DOJ’s witness-adversaries were titans of their fields–tough, highly educated and motivated arch-achievers like Drs. Samet, Henningfield and Burns, and Surgeon General Carmona.

The tobacco lawyers in the DOJ trial could open up with all the firepower at their disposal. But should they bring out all that weaponry in the Rosen case, just to demolish the testimony of local, normal everyday people, regular working doctors and psychiatrists? Would that look unfair to a jury?

Aggression is clear in the faces and demeanors of Defense attorneys Harold Gordon and David Wallace. It’s undisguised, you could even say naked. Not that there’s anything wrong with that! I think juries will accept, even expect it. But woe betide the lawyer who, buoyed by the might of Big Tobacco, aggressively takes on a normal, everyday person, and appears browbeating–or worse, sadistic.

This is the fine line Mr. Wallace walked today in his cross of Dr. Arnold Mandelstam, Selma Rosen’s psychiatrist for the last 10 years, since her surgery in 1995.

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Dr. Mandelstam has a thin, dark face, and his black hair is heavily flecked with grey. He wears glasses, and looks a bit like Ralph Nader–if Ralph Nader were younger, shorter, had good taste in clothes and wore a yarmulka.

Dr. Mandelstam is a specialist in clinical addiction therapy, ie, he works in the field; he is not a researcher or writer of journal articles–as Mr. Wallace later took pains to point out. And indeed, in Rosen lawyer Gary Holt’s direct examination, Dr. Mandelstam did not display an in-depth knowledge of the evolution of science’s understanding of nicotine addiction. Mr. Wallace on cross let this slide, but had this been the DOJ trial, I believe Dr. Mandelstam would have been put through the Cuisinart.

In the direct, Dr. Mandelstam described treating Mrs. Rosen for her depression and anxiety, beginning in December, 1995. He said he has diagnosed her as having a Major Depressive Disorder and also Posttraumatic Stress Disorder. As to medication, he said they finally, after a year and a half, found that the drug which worked best for her depression happened to be Wellbutrin. At the time, they didn’t know that the anti-depressant Wellbutrin would soon be found to be an effective stop-smoking drug also, and would be sold and marketed as such under the name Zyban. Mrs. Rosen was able to withdraw from anti-depressants completely 1 1/2 years ago.

Dr. Mandelstam said she is getting better all the time, and has been able to involve herself in activist organizations.

There’s something of the aging JD to Mr. Wallace, though he’s far too young to have lived in the “West Side Story” period. Yet his appearance leads you to reflect on how he may have looked back then, in a 50s high school. You can easily imagine him as a lean, rangy kid with a slouch, carrying his cigarettes (which he still smokes) folded into the sleeve of his T-Shirt, above his biceps. You can imagine his hair as Lord-of-Flatbush-black, well-greased and turned into a DA in the back.

Today, his hair is mostly silver, pompadour-less but slicked straight back from his rough-hewn face; it’s still thick and still overlong–just long enough, in fact, to be combed into a DA! (It is not.) He’s not exactly lanky, but sports a more filled-out, athletic physique.

Mr. Wallace, with his hot-rod appearance,** must have certain parameters he knows he dare not cross, to avoid alienating any jury member who doesn’t see him and immediately start reminiscing about some old boyfriend. Any confrontation with a witness must be seen as a fair fight. He can’t let the jury see his gang of hoodlum lawyers in the shadows*, and he must at all costs keep his switchblade in his back pocket.

Mr. Wallace started his cross very agreeably. He said, let’s try to cut our time here short, and see if we can go ahead and agree on some things. It appears Mr. Wallace wanted to lead Dr. Mandelstam down an agreeable path to the point where they could both agree that Mrs. Rosen had no case.

Mr. Wallace sought, and generally gained, agreement that:

–Even if there are nicotine receptors in the brain and throughout the body that physiologically influence cravings, “the body craves a lot of things,” ie, coffee, alcohol, sex, gambling, running (Mr. Wallace noted that both he and Dr. Mandelstam were avid runners).

–Nicotine is a major part of smoking, but it doesn’t prevent an individual from quitting, and indeed, Mrs. Rosen has managed to relieve herself of that burden. Dr. Mandelstam acknowledged that she is “in remission” right now.

Some have criticized tobacco plaintiffs’ lawyers’ “Trial in a Box,” but as Mr. Wallace set about reciting so expertly, so effortlessly, so persuasively, his matins on addiction–how sex, alcohol, behavioral cravings, etc. are addictive, how people (including Selma Rosen) can and do quit, how Mrs. Rosen herself had to put the cigarette herself in her own mouth, on and on, and I thought of how these lines of argument, often well-countered in argumentation, had been honed and polished to perfection by generations of tobacco lawyers and assorted consulting Jesuits over the course of decades. And indeed, Mr. Wallace’s litany of questions –almost rhetorical in their demands for “yes” answers– was quite seductive, alluring even, so easy to cling to in time of doubt . . .

Then Mr. Wallace presented the various scientific high-bars Dr. Mandelstam had failed to rise to. Dr. Mandelstam had never, in all his ten years of seeing Mrs. Rosen, scientifically quantified her cravings; he was unable to identify the exact day between 1955 and 1959 that she became addicted, he failed to state from the beginning of his association with her that Mrs. Rosen would be unable to work for at least the next ten years, instead expressing a hopeful prognosis of recovery in a year or so; and he failed to consider differential diagnoses for her condition–like, the idea that she was completely faking it.

Psychologically Distoibed

This part of the cross, concerning Mrs. Rosen’s psychological and emotional ability to return to work, became contentious at times, especially after lunch, when Dr. Mandelstam may have taken the opportunity to gird himself..

Mr. Wallace cited Mrs. Rosen’s duties at NatWest Bank–sitting at a desk, doing paperwork, making phone calls and driving to client meetings. He showed she was capable of doing each of these activities today, 10 years after the surgery. He noted that for those 10 years, once a month, she came to Dr. Mandelstam’s office and was able to sit in a chair “for 50 minutes and listen to you talk….as she’s doing now, sitting there and listening to you talk.”

Dr. Mandelstam rebelled in his answer, and said, “You could use your terms a little more gently, you don’t have to be intimidating in your questioning.”

Mr. Wallace wisely backed off immediately, archly casual as he slipped the switchblade back into his pocket as if it had never been out. Dr. Mandelstam’s strength, his caring, and his integrity seemed enhanced by the exchange.

Mr. Wallace claimed Dr. Mandelstam’s diagnosis of her depression and inability to work was based solely on what she told him, AND on how she chose to present herself to him. He said Dr. Mandelstam had never seen Mrs. Rosen outside his office until today; he never saw the real person.

“Now look at the face and voice Selma Rosen showed the world outside your office.”

Mr. Wallace then presented a whiteboard on which he carefully laid out a timeline, based on quite a number Dr. Mandelstam’s patient notes in which he cited her diminished capacity.

Oh, to be plucked from one’s daily life and suddenly be asked to explicate with scientific precision every decision you ever made, to have every patient’s note you wrote for the last ten years gone over with a fine-tooth comb by squads of tobacco lawyers backed up by platoons of support personnel, massaged, edited, excised and thrown onto a movie screen in a courtroom.

In contrast to Dr. Mandelstam’s notes, Mr. Wallace then laid out on the board Mrs. Rosen’s activities in the same time periods:

–her trips to Florida and Texas to take part in clinical studies;

–her trip to Italy to take part in a lung cancer conference,

–her presence on the board of directors or trustees of 2 lung cancer organizations,

–her founding of the Lung Cancer Society of Long Island, and her desire to make in a the Lung Cancer Society of America.***

As he recited activity after activity, her daily grind did sound pretty intense, and very close to a full-time job in itself. However, the jury looks as if they are all-too aware of what it takes to hold down a full time job, and of the difference between a full time job and taking a few trips a year.

As to her ability to drive, Dr. Mandelstam tried to respond with a unique, “Toonces the Cat” Defense. He said he once saw her trying to drive out of a lot, before he knew who the driver was. He said he was frightened to see someone driving so poorly. (Toonces the Cat, as the Steve Martin sketch goes, is amazing–he actually can drive a car! (The car goes off a cliff.) Just not very well.

Yes, Dr. Mandelstam seemed to be saying, Mrs. Rosen can drive a car–just not very well!

But Mr. Wallace can play chicken with the best of them, and shot back, “But you didn’t see her driving before her surgery, so you don’t have a benchmark to judge, do you?”

But Dr. Mandelstam turned out to be an able defender of Mrs. Rosen in non-automotive areas, emphasizing that her lung cancer awareness activities were entirely consistent with her fervent desire to get better mentally and physically, and that they were done with his overt encouragement.

He also defended himself fairly well, saying at several junctures, “I can explain, if you allow me the latitude to respond.”

Finally, Mr. Wallace presented Dr. Mandelstam with the American Psychiatric Associations’ reference volume, the DSM-IV (Diagnostic and Statistical Manual of Mental Disorders) entry on Factitious Disorder (www.psychiatryonline.com/…), which is the intentional production of psychological and physical signs or symptoms.

Now, at the end of a long day, perhaps sensing the school bell was about to ring, Dr. Mandelstam was ready to rumble. He said he had considered a number of differential diagnoses (”anything you can bring up in your book”), including FD, but had discarded it. When pressed, he said doctors have to learn to trust their internal barometer, their instinct to see who is for real and who isn’t, “sometimes you just got to trust your gut.” When asked if another doctor could view Mrs. Rosen’s presentation and come to the Factitious Disorder conclusion as one differential diagnosis, he said “probably not.”

“So the only opinions that matter are those of Dr. Mandelstam,” Mr. Wallace said.

“No,” said Dr. Mandelstam, “but Factitious Disorder is a real stretch. For other doctors, even doctors you hire, it would be a stretch.”

Mr. Wallace took a moment’s breath. “Alright,” he said graciously, “I’ll let you have that one.”

——————————-

Superwoman

Mr. Holt on redirect at first got in a few telling points–Dr. Mandelstam testified about Mrs. Rosen’s acute fears of a recurrence of the cancer which led her to those clinics in Florida and Texas, about the science that indicates women have a harder time quitting smoking, and about her pulmonologist Dr. Daniel Libby’s [uncontested so far] testimony that she was physically unable to work.

Mr. Holt was shut down many times on sustained objections, but before he ended his redirect, he obtained this testimony:

Dr. Mandelstam said in his own mind he thought of Mrs. Rosen as Christopher Reeve. “If we were to make a board like this [pointing to Mr. Wallace’s whiteboard] we’d have a lot more [advocacy activities] than this–and he was a quadriplegic!”

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*Besides the trickle of courthouse interns sitting in on trials in their free time, a lot of people come into the courtroom, different ones every day, who are associated with the tobacco team. The lawyers here are with Chadbourne & Park (Mr. Wallace) and Jones Day (Mr. Gordon and Mr. Russo), two of the largest firms in the nation. Certainly, there seems to be a large support team behind the tobacco lawyers, operating from a nearby base.

**On reflection, if I had this to do over again, I might compare Mr. Walllace more accurately and less anachronistically to a 70s muscle car–but there have been no great musicals based on that milieu. Whatever the case, if you appreciate individual, rule-breaking styles, you have to admire Mr. Wallace for his aberrant courtroom appearance.

***Mr. Holt has tried at least twice to introduce evidence that the 5-7 women with whom Mr. Rosen founded the Lung Cancer Society of Long Island, have all died of the disease. She is the sole survivor. “It goes to her fear of dying,” he argued to Judge Lally, in response to an objection that cut off his question in the nick of time. “Sustained,” she ruled.

But the idea is certainly out there. The jury can certainly make the same inference I have, but not use it in arguments in the jury room.

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